There are two prerequisites for invoking Section 115. Section 115 is triggered when
(1) EPA finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country (the “endangerment finding”), and
(2) EPA determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country” by Section 115 (the “reciprocity determination”).
The first one is easy — EPA has already made an endangerment finding for carbon dioxide on the domestic side. No reason it wouldn’t extend to other countries, too, as carbon dioxide spreads globally. The second, reciprocity, is a little trickier. The authors say: although there are numerous bilateral and multilateral agreements on which EPA might rely [to show reciprocity], the strongest evidence may be found in the procedural rights provided and the substantive commitments made through the United Nations Framework Convention on Climate Change (UNFCCC) and the international efforts to address climate change which recently coalesced in Paris in December 2015.
In other words, the Paris climate agreement demonstrates reciprocity and triggers Section 115. Maybe. It could, and likely will, be argued that since the commitments made in Paris are not legally binding, they do not show enough reciprocity to justify legally binding regulations in the US. Or one can imagine many other routes of legal attack, all of which would be tried if this became a real possibility. It doesn’t help that Section 115 has never been used and thus never tested before a court.
Section 115 would basically allow EPA to take over everything
If Section 115 is triggered, it leaves the means of regulation almost entirely open, making no specifications as to sectors or source types, just “any air pollutant or pollutants emitted in the United States [that] cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country.” That’s pretty broad.All it prescribes is that states be required to update “so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment.” That’s a reference to state implementation plans (SIPs), which all states already have in order to enforce other EPA regulations. So if Section 115 is triggered, EPA is to require that states update their SIPs to a level that would prevent the threat (in this case climate change).
This part is certain to be a target of legal fire: US states cannot, on their own, “prevent or eliminate the endangerment” from climate change. So whatever target is set by EPA will be somewhat arbitrary. The authors say EPA would be justified in adopting the target Obama pledged in Paris: 26 to 28 percent below 2005 levels by 2025.
SIPs leave enormous flexibility for states, allowing them to choose trading systems, carbon taxes, low-carbon fuel standards, or what have you. They just have to meet the overall emissions target set by EPA. But as a backstop, the authors say, EPA could create an economy-wide emissions trading system (none shall call it “cap and trade”).
They argue that the economy-wide program could absorb existing carbon dioxide regulations on power plants, allowing cross-sectoral trading between power plants and other sources. It is, they say, “capacious”:
Indeed, Section 115 is capacious enough for EPA and the states to build an emissions trading program that is interstate, national or even international in scale, and that is economy-wide in scope, incorporating power plants and other Section 111 sources, non-Section 111 industrial sources, transportation fuels, commercial and residential natural gas, energy efficiency initiatives, planning efforts, and so on.
EPA, unbound! In Whitman v. American Trucking, Supreme Court Justice Antonin Scalia famously wrote that “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”
Legal challengers have already argued that EPA’s carbon standards on existing power plants are an elephant in a mousehole, a sweeping provision built out of the obscure and rarely used CAA 111(d). If that’s true, then an economy-wide carbon trading system built out of Section 115 would be a veritable whale in the mousehole.
Nonetheless, analysts have looked deep into the issue and run it by a whole host of other legal scholars, and they are convinced that this use of Section 115 would hold up in court. In reality, whether such a gambit holds up will likely depend on the composition of the Supreme Court. The current bench has expressed increasing skepticism toward ambitious executive actions; I can’t see Kennedy going for this, much less Scalia et al.
But then, the next president will likely appoint at least two new justices, so who knows.
The politics of Section 115 are too dicey for Obama, but there’s always (maybe) Clinton or Sanders…
The process of actually putting together an economy-wide, cross-sectoral program would be … time-consuming. And fraught. Extremely fraught, even.
There would be preliminary inquiries and studies, comment periods, drafts, stakeholder discussions — accompanied, in all likelihood, by a total political storm. (“Lame-duck dictator Obama instructs out-of-control EPA to place jackboot on neck of helpless nation to please elite European counterparts!”)
It’s probably more than Obama wants to take on in the final 11 months of his presidency, especially since EPA already has its hands full implementing the Clean Power Plan and several other landmark regulations.
However, EPA could lay some groundwork. David Roberts asked lead author Michael Burger about it, and he had this to say:
EPA can get things teed up for the next administration. For instance, EPA staff could begin to develop a proposal internally. EPA could put out an advanced notice of proposed rulemaking or a request for comments on a potential Section 115 program. EPA could perhaps even go further, and go through the notice and comment process and issue a rule that makes the prerequisite findings for a Section 115 program — the endangerment finding and the reciprocity determination.
Roberts doubts Obama will say or do anything public on this. He’s got a full rhymes-with-bucket list anyway. It goes without saying that neither a President Trump nor a President Cruz would ever sign off on a large-scale extension of EPA carbon rules, not even if God himself returned to earth and revealed himself to be a liberal technocrat.
So if anything like this comes to fruition, it will be because a Democrat is elected president in 2016 and appoints a competent, ambitious person to head EPA.
An EPA carbon trading program would be ballsy but entirely within tradition
It would truly take brass ovaries (or balls, depending on how the primary goes) for a Democratic president to implement an economy-wide carbon trading system through a never-used provision of the Clean Air Act. But if that president is as cut off from legislative remedies as Obama has been (as is likely), it’s a way to take bold action.
It would mean an extension of EPA’s reach that the authors of the Clean Air Act never envisioned. The Founding Fathers never envisioned a black man being president or massive social spending programs to help the poor and sick. Yet it is their principles that lead there. So it is with the US environmental laws of the 1960s and ’70s. So it is, especially, with the Clean Air Act.
The act says, effectively, we shall regulate things we emit that harm us, to prevent that harm. At the time, lawmakers were thinking about smog and other local pollutants. But it turns out “things we emit that harm us” is far more expansive category than they could have known at the time.
Emitting things that harm us, it seems, is core to how industrialized society is fueled. That means EPA (also created under Nixon) has a much broader ambit than its founders could have anticipated.
Congress in 1973 did not intend for EPA to shepherd an energy transition in the US — not directly, anyway. But they did intend to protect Americans from the effects of industrialization. And they left that commitment remarkably open-ended.
It was a demonstration of faith in government and in future generations of scientists and regulators to shape policy to changing circumstances. It was prescient, and bold, and more consequential than they could have anticipated. Green drift has shaped the environmental records of every president since, very much including Obama.
If a Democrat follows Obama, she or he now has the tools to push green drift even further, maybe even far enough to make good on America’s commitments in Paris.
This excerpt is cross-posted from Vox.com and an article by David Roberts.